Patrick Frey, the Los Angeles County prosecutor who “blawgs” under the name Patterico, had a brief notation on University of Chicago law professor Geoffrey Stone’s article critical of the Supreme Court decision in Gonzales v. Carhart. Mr Frey calls it “this jaw-droppingly incompetent analysis,” noting that were Professor Stone’s article a law school examination, Mr Frey would give it an “F.”
Mr Frey is an attorney, and I am not; I’ll leave the legal analysis to him. But it did lead me to do something radical like actually read Professor Stone’s article, in which I found these repugnant paragraphs:
What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is â€œimmoralâ€ and may be prohibited even without a clear statutory exception to protect the health of the woman.
By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman â€œto determine her lifeâ€™s courseâ€ is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of oneâ€™s personal religious faith.
This treads on the edges, if it doesn’t step right in the middle, of the debate during the last part of 2001 and into 2002 concerning whether Catholics Need Not Apply and the apparent, even obvious, discrimination against Catholic judicial nominees by the Democrats on the Senate Judiciary Committee. The Tony Auth cartoon, from The Philadelphia Inquirer, (above left) makes the same point for the liberal editors of that newspaper.
Yes, Theyâ€™re Anti-Catholic
by Ramesh Ponnuru, National Review
The Republicans’ latest gambit in the judicial confirmation battles â€” accusing the Democrats of applying anti-Catholic litmus tests â€” has been politically productive, but also provocative. It has been criticized by such Democratic senators as Richard Durbin, by the liberal journalist Richard Cohen, and, closer to home, by my colleague Byron York, writing on NRO.
York is the best conservative journalist on the judicial-confirmation beat. Actually, the “conservative” modifier in that sentence may be superfluous. It is no exaggeration to say that Republicans on the Hill and in the Bush administration have relied on York’s reporting to know what’s going on, not least within their own ranks. By objecting on principle to the Republicans’ tactics, York has shown an admirably independent cast of mind. In this case, however, I think the Republicans are basically right and York is wrong.
York believes that it is unfair, and even dangerous, to charge Senate Democrats with anti-Catholicism. He points out that the Democrats are not against Bush nominee Bill Pryor because he is Catholic; they’re against him because he’s against abortion. They would also oppose an evangelical Protestant who opposed abortion as vigorously as Pryor does. They would oppose an atheist pro-lifer, for that matter. The Committee for Justice, a Republican group that has run ads accusing the Democrats of imposing a “No Catholics Need Apply” test for judges, says that Democratic senators who complain about Pryor’s “deeply held beliefs” are making a veiled reference to his religion. York thinks that’s a real stretch. Pryor has said that Roe v. Wade has led to “slaughter.” You don’t need to know his religion to infer from that comment (among others) that he has deeply held beliefs on abortion, whatever the route by which he came to them. . . .
It is true, however, that the Democrats have adopted the next best thing. They have a viewpoint test for office that has the effect of screening out all Catholics faithful to their church’s teachings on abortion. The fact that the test screens out a lot of Protestants, too, makes the problem worse, not better. It really is true that faithful Catholics “need not apply” as far as most Democrats are concerned. A Catholic can win their support only by ceasing, on the decisive issue, to be Catholic â€” by breaking from his church’s teaching, as Senator Durbin has done. (It is rather disgraceful for a man who went in six years from supporting the Human Life Amendment to supporting partial-birth abortion to keep carrying on about the extremism of people whose beliefs have been less supple.)
“Whose beliefs have been less supple.” A good way of putting it, that. Senator John FranÃ§ois Kerry was the 2004 Democratic presidential nominee, and an abortion supporter; he also claimed to be a devout Roman Catholic. That real Roman Catholics had, at best, doubts about Mr Kerry’s sincerity concerning his faith is demonstrated by the fact that 52% of Catholic voters cast their votes for George W Bush, a Methodist; Catholics are normally slightly Democratic in the aggregate.
Mr Ponnuru has missed one point, however. While it may be that the Senate Democrats, despite their denials, are anti-Catholic in the sense that they are anti-real-Catholic, there is another side to the coin: by claiming, as Professor Stone does, that opposition to abortion from people who happen to be Catholic is the attempt by Catholics to impose their religion on everyone, the liberals are seizing the separation of church and state argument. You don’t have to be a particularly good debater, you don’t have to be able to refute your opponents’ points, if you can hammer them with an imposition of religion argument, even if they’ve made no reference to religion.
Did the five justices in the majority vote as they did because they are Catholic? I’m not a mind-reader, so I have no way to know. But Professor Stone and Mr Auth apparently are telepathic, to know that the five justices in the majority, all Catholics, imposed their religious views rather than expressed their legal ones; the notion that their religious views could be conterminous with their legal ones without their faith directing their legal opinions seems not to have occurred to Professor Stone — or he’d rather simply have a separation of church and state argument, regardless of what the facts might be.
Cross posted on Red State.